APPLICATION OF UNDRIP ON THE RIGHTS OF INDIGENOUS PEOPLES

THE APPLICATION OF THE UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES TO INCREASE ACCESS TO JUSTICE

DREW LAFOND

MLT AIKINS LLP

On June 21, 2021, the

(“Bill C-15) received Royal Assent and immediately came into force, bringing Canada one step closer to implementing the

“Declaration”). (“UNDRIP” or the

Canada’s history with UNDRIP has been filled with hesitation and trepidation. In 2007, Canada was one of only four countries in the United Nations General Assembly that opposed the adoption of the Declaration. In 2010, Canada announced some qualified support for the Declaration, describing it as a “non-legally binding document” and “aspirational”.1 Over the next decade, several private members’ bills would be introduced into Parliament seeking to implement UNDRIP into Canadian law. In 2016, the Honourable Carolyn Bennet, the then-Minister of Indigenous and Northern Affairs, announced that Canada fully endorsed the adoption of UNDRIP.2 However, it was not until Bill C-15 that any legislation was passed to fully affirm the application of UNDRIP in Canada. The Bill itself is a relatively short piece of legislation, comprised of a 23-paragraph preamble and seven clauses. The purpose of Bill C-15 is two-fold: first, it affirms that the Declaration is a universal international human rights instrument with application in Canadian law; and second, it provides a framework for the federal government to implement the Declaration. Bill C-15 aims to achieve the latter by creating a requirement that the federal government, in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with UNDRIP. It requires the preparation and implementation of an action plan to achieve the objectives of UNDRIP and includes reporting requirements for accountability purposes.

UNDRIP is a broad document, as the Declaration sets forth both the rights that Indigenous peoples are guaranteed under international law and sets out the minimum standards for guaranteeing the individual and collective rights of Indigenous peoples. An important objective that runs throughout the Declaration is the recognition of Indigenous peoples’ rights to self-determination, autonomy, and self-government. These rights are expressed throughout the Declaration, and are interspersed among the recognition of other cultural, traditional, economic and land rights. UNDRIP highlights the right of Indigenous peoples to maintain and strengthen their own institutions, cultures and traditions, and to pursue their development in keeping with their own needs and aspirations.

The Declaration also makes specific mention of the right of Indigenous peoples to access justice. This is set out in Article 40 of the Declaration, which provides as follows:

This Article acknowledges that the recognition of Indigenous customs, traditions, rules and legal systems are an essential part of making the justice system accessible. As was stated by the Truth and Reconciliation Commission (“TRC”) in 2015, it is necessary for reconciliation that Indigenous customs, traditions, and laws are recognized and applied in Canada’s justice system.3 This was the foundation of the TRC’s Call to Action number 50:

Bill C-15 is, at least in part, the federal government’s response to this Call to Action. As an international declaration, UNDRIP is commonly known in international law as a “soft law” instrument, meaning that – unlike a treaty – it is non-binding and cannot be directly enforced against states who do not comply with its terms.4 However, with Bill C-15’s affirmation that UNDRIP is a universal international human rights instrument with application in Canadian law, UNDRIP has become another tool that can be relied upon to protect Indigenous peoples’ rights to self-determination, autonomy and self-government. The protection and strengthening of these rights is crucial to increasing Indigenous peoples’ access to justice.

The immediate effects of Bill C-15 on pre-existing legislation have yet to be determined, and we will have to wait and see what comes of the federal government’s action plan to achieve the objectives of UNDRIP. However, in the meantime, Bill C-15 is an acknowledgment that Canadian legislation should be read and interpreted in accordance with the principles and objectives of UNDRIP, and that any new legislation should comply with the principles and objectives of the Declaration. For lawyers, there is a responsibility to review the Articles of UNDRIP and remind decision-makers that UNDRIP is a part of Canada’s international rights obligations and it applies to Canadian laws. 1 Indigenous and Northern Affairs Canada, Canada’s Statement of Support on the United Nations Declaration on the Rights of Indigenous Peoples (12 November 2010), News Release, online: <https://www.aadncaandc.gc.ca/eng/1309374239861/13093745 46142>.

2 Indigenous and Northern Affairs Canada, Canada Becomes a Full Supporter of the United Nations Declaration on the Rights of Indigenous Peoples (10 May 2016), News Release, online: <https://www. canada.ca/en/indigenous-northern-affairs/ news/2016/05/canada-becomes-a-fullsupporter-of-the-united-nations-declarationon-the-rights-of-indigenous-peoples.html>. 3 Truth and Reconciliation Commission of Canada, “Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada” (Ottawa: TRC, 2015) at 202 – 207.

4 Mauro Barelli, Seeking Justice in International Law: The significance and implications of the UN Declaration on the Rights of Indigenous Peoples, (Oxfordshire: Routledge, 2016) at 42; Indigenous Bar Association, Understanding and Implementing the UN Declaration on the Rights of Indigenous Peoples: An Introductory Handbook (Winnipeg, 2011) at 7

LAWYERS FINANCIAL—Insurance and Investment Solutions along with a deep knowledge of the financial needs of the legal community. No matter the situation, we can help you be ready.

Connect with your local Lawyers Financial advisor Jim Britton 306.596.2934 or j.britton@lawyersfinancial.ca

lawyersfinancial.ca

Lawyers Financial products and plans are sponsored by The Canadian Bar Insurance Association (CBIA). Lawyers Financial is a trade mark of CBIA.